Wizzair’s Contentions

COMPLAINT TRANSMITTAL COVERSHEET

Attached is a Complaint that has been filed against you with the World Intellectual Property Organization (WIPO) Arbitration and Mediation Center (the Center) pursuant to the Uniform Domain Name Dispute Resolution Policy (the Policy) approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules).

The Policy is incorporated by reference into your Registration Agreement with the Registrar(s) of your domain name(s), in accordance with which you are required to submit to a mandatory administrative proceeding in the event that a third party (a Complainant) submits a complaint to a dispute resolution service provider, such as the Center, concerning a domain name that you have registered. You will find the name and contact details of the Complainant, as well as the domain name(s) that is/are the subject of the Complaint in the document that accompanies this Coversheet.

You have no duty to act at this time. Once the Center has checked the Complaint to determine that it satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules, it will forward an official copy of the Complaint to you. You will then have 20 calendar days within which to submit a Response to the Complaint in accordance with the Rules and Supplemental Rules to the Center and the Complainant. You may represent yourself or seek the assistance of legal counsel to represent you in the administrative proceeding.

* The Policy can be found at http://www.wipo.int/amc/en/domains/rules/

* The Rules can be found at http://www.wipo.int/amc/en/domains/rules/

* The Supplemental Rules, as well as other information concerning the resolution of domain name disputes can be found at http://www.wipo.int/amc/en/domains/rules/

* A model Response can be found at http://www.wipo.int/amc/en/domains/respondent/index.html

Alternatively, you may contact the Center to obtain any of the above documents. The Center can be contacted in Geneva, Switzerland by telephone at +41 22 338 8247, by fax at +41 22 740 3700 or by e-mail at domain.disputes@wipo.int.

You are kindly requested to contact the Center to provide the contact details to which you would like (a) the official version of the Complaint and (b) other communications in the administrative proceeding to be sent.

A copy of this Complaint has also been sent to the Registrar(s) with which the domain name(s) that is/are the subject of the Complaint is/are registered.

By submitting this Complaint to the Center the Complainant hereby agrees to abide and be bound by the provisions of the Policy, Rules and Supplemental Rules.

Before the:

WORLD INTELLECTUAL PROPERTY ORGANIZATION

ARBITRATION AND MEDIATION CENTER

WIZZ Air Hungary Airlines

Limited Liability Company

Airport Business Park, Lőrinci út 59., H-2220 Vecsés, Hungary

(Complainant)

-v-
Disputed Domain Name:
Beyond Convention

707 W. 21st, Austin, Texas 78705, United States

(Respondent)

www.wizzairsucks.com

________________________________
COMPLAINT

(Rules, para. 3(b))

I. Introduction

1. This Complaint is hereby submitted for decision in accordance with the Uniform Domain Name Dispute Resolution Policy (the Policy), approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), approved by ICANN on October 24, 1999 and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules).

II. The Parties

A. The Complainant

(Rules, para. 3(b)(ii) and (iii))

2. The Complainant in this administrative proceeding is WIZZ Air Hungary Airlines Limited Liability Company, a limited liability company registered under the laws of Hungary under company registration no. 13-09-096209, and having its registered seat at Airport Business Park, Lőrinci út 59., H-2220 Vecsés, Hungary.

3. The Complainant’s contact details are:

Address: Airport Business Park, Lőrinci út 59., H-2220 Vecsés, Hungary

Telephone: +36 1 777 9376

Fax: +36 1 777 9444

Contact: Dr. Emese Békessy

E-mail: emese.bekessy@wizzair.com

4. The Complainant’s authorized representative in this administrative proceeding is:

Name: Dr. Dóra Petrányi and/or Dr. Gabriella Ormai

Address: Ormai és Társai CMS Cameron McKenna LLP, Ybl Palace, 3rd Floor, Károlyi Mihály u. 12., H-1053 Budapest, Hungary

Telephone: +36 1 483 4800

Fax: +36 1 483 4801

E-mail: dora.petranyi@cms-cmck.com;

gabriella.ormai@cms-cmck.com

Power of attorney is provided as Annex 1 to this Complaint.

5. The Complainant’s preferred method of communications directed to the Complainant in this administrative proceeding is:

Electronic-only material

Method: e-mail

Address: dora.petranyi@cms-cmck.com

Contact person: Dr. Dóra Petrányi

Material including hardcopy

Method: post/courier

Address: Ormai és Társai CMS Cameron McKenna LLP, Ybl Palace, 3rd Floor, Károlyi Mihály u. 12., H-1053 Budapest, Hungary

Fax: +36 1 483 4801

Contact: Dr. Dóra Petrányi

B. The Respondent

(Rules, para. 3(b)(v))

6. According to the information on the disputed domain name’s Whois database (found on the Internic database at http://whois.domaintools.com/wizzairsucks.com and http://who.godaddy.com/WhoIsCheck.aspx), the Respondent in this administrative proceeding is Beyond Convention, residing at 707 W. 21st, Austin, Texas 78705, United States. Copies of the printouts of the database search conducted on 17 August 2009 are provided as Annex 2.

7. All information known to the Complainant regarding how to contact the Respondent is as follows:

Respondent’s contact details:

Address: XXXXXXXXX

Respondent’s administrative and technical contact:

Name: Mr. XXXXXXXXXXX

Address: XXXXXXXXX

Telephone: XXXXXXXXX

E-mail: XXXXXXX.XXXXXXXX@gmail.com

III. The Domain Name and Registrar
(Rules, para. 3(b)(vi) and (vii))

8. This dispute concerns the domain name identified below:

www.wizzairsucks.com

9. The registrar with which the domain name is registered is:

GoDaddy.com, Inc.

Address: The Go Daddy Group, Inc., 14455 N. Hayden Rd., Suite 219, Scottsdale, AZ 85260-6947, United States

Telephone: +1 480 505 8899

Fax: +1 480 505 8844

IV. Jurisdictional Basis for the Administrative Proceeding
(Rules, paras. 3(a), 3(b)(xv)

10. This dispute is properly within the scope of the Policy and the Administrative Panel has jurisdiction to decide the dispute. The registration agreement, pursuant to which the domain name that is the subject of this Complaint is registered, incorporates the Policy. The disputed domain name was registered on 27 April 2009. A true and correct copy of the (i) registration agreement, (ii) the Policy and (iii) the registrar’s domain name dispute policy that applies to the domain name in question is provided as Annex 3 to this Complaint.

V. Factual and Legal Grounds

(Policy, paras. 4(a), (b), (c); Rules, para. 3)

11. This Complaint is based on the following grounds:

Factual background

The Complainant is an airline, a member of the European Low Fare Airlines Association, operating under the Wizz Air trade mark. Wizz Air has 11 operating bases in the Eastern European region: Katowice, Warsaw, Gdansk and Poznan in Poland, Budapest in Hungary, Sofia in Bulgaria, Bucharest, Cluj-Napoca and Timisoara in Romania, Kyiv in Ukraine and Prague in Czech Republic. Wizz Air provides low-cost air transport throughout Europe, mainly to and from Central and Eastern Europe, currently offering flights on over 150 routes to 21 countries, has carried over 15.5 million passengers since the start of its operations in May 2004 and, due to its dynamic growth, expects to carry about 7.5 million passengers in 2009. The Complainant is the owner of several registered trade marks – amongst others – “wizzair” word trademark, “Wizz Air” word combination trademark, “WIZZ” word trademark and “WIZZ” colored word trademark. A list of the Complainant’s registered trademarks is provided as Annex 4 to this Complaint. The Complainant operates its primary website at www.wizzair.com in fifteen different languages and also holds several ccTLD domain names (such as www.wizzair.hu). The Complainant’s “wizzair” and “Wizz Air” trade marks are well and widely known throughout the world.

The Respondent is a Texas (USA) based company that operates a web site under the domain name www.wizzairsucks.com.

A. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(Policy, para. 4(a)(i), Rules, paras. 3(b)(viii), (b)(ix)(1))

Registered trademark

The Complainant obtained trade mark protection for the word “wizzair” and “Wizz Air” in almost each country in Europe (see list attached under Annex 4).

Confusing similarity

The disputed domain name contains the Complainant’s entire trade mark, and in addition, it contains the suffix “-sucks”. The combination of the Complainant’s trade mark with the word “-sucks” does not sufficiently distinguish the domain name from the trade mark, and also enhances the risk of confusion, as “wizzair” is the only distinctive element of the disputed domain name. The addition of a generic or descriptive term to an otherwise distinctive or well known trade mark does not distinguish the disputed domain name from the trade mark.

Previous “-sucks” cases on expression of ‘ confusing similarity’

The word “-sucks” is a negative term used to indicate criticism. The disputed domain name falls within the category of so-called “-sucks” cases (where a trade mark is joined with a negative term). The view of the majority of panels regarding the assessment of “-sucks” suffixes is summarized in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions1. Such document states that “A domain name consisting of a trademark and a negative term is confusingly similar to the complainant’s mark. Confusing similarity has been found because the domain name contains a trademark and a dictionary word; or because the disputed domain name is highly similar to the trademark; or because the domain name may not be recognized as negative; or because the domain name may be viewed by non-fluent English language speakers, who may not recognize the negative connotations of the word that is attached to the trademark.” It is evident based on the above overview that the current practice of the Center unambiguously support the argumentation of the Complainant, namely that the disputed domain name is confusingly similar to the Complainant’s trade mark.2

Even if some Internet users dissociate the addition of the word “-sucks” from the Complainant, not all Internet users are English speaking. As it can also be deducted from the number of languages that can be chosen on the Complainant’s official internet site, the Complainant has a significant number of non-English speaking customers. These customers will not automatically recognize that the word “-sucks” is a pejorative term and they will not be able to dissociate it from the Complainant’ trade mark. Other Internet users will not give the domain name any definite meaning, and will be confused regarding its association with the Complainant. Even Internet users who do understand the meaning of “-sucks” may still remain confused regarding the similarity of the disputed domain name with the Complainant’s well known trade mark. An Internet user may also think that the Complainant registered the disputed domain name for marketing purposes (in a self-derision strategy).

Overall, in the Complainant’s view and based on the majority of “-sucks” cases before the Center, as Internet users may not immediately recognize the disputed domain name as different and independent from the trade marks of the Complainant, and because the “-sucks” component (when added to the well known trade mark of “wizzair”) is not the most prominent or obvious feature of the name, the disputed domain name is confusingly similar to the Complainant’s “wizzair” and “Wizz Air” trade marks.

B. The Respondent has no rights or legitimate interests in respect of the domain name;

(Policy, para. 4(a)(ii), Rules, para. 3(b)(ix)(2))

No rights or legitimate interests

The Respondent is not in anyway related to the Complainant’s business, and is not an agent of the Complainant. The Respondent is clearly not currently known and has never been known in relation to “wizzair” or “Wizz Air”, or any combination of these trade marks with the term “-sucks”. The Complainant has not granted any license or authorization to the Respondent to make any use, or apply for registration of the disputed domain name. Accordingly, the Respondent has no rights or legitimate interests in the disputed domain name.

Lack of legitimate non-commercial fair use

The Respondent is not using the domain name in connection with bona fide criticism; there is no evidence to support that the disputed domain name was registered for the purpose of a legitimate protest site.

It is to be highlighted that the Respondent offers for sale T-shirts and other goods to the Internet users and also leads them to site http://wizzairsucks.spreadshirt.net/-/-/Shop/. This clearly evidences the commercial purposes of the Respondent. Copies of the printouts of the concerned sites are provided as Annex 5.

In addition to the above, at the disputed web site the Respondent makes references to the competitors of the Complainant by recommending the Internet users to use these airlines instead of the Complainant. Copy of the printout of the concerned site is provided as Annex 6.

Overall, in the Complainant’s view, as the Respondent has no rights or legitimate interests in connection with “wizzair” or “Wizz Air” trademarks, and since the Respondent cannot be able to demonstrate a legitimate non-commercial or fair use of the disputed domain name, and also because the Respondent gains commercial revenue from the operation of the web site, the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. The domain name was registered and is being used in bad faith.

(Policy, paras. 4(a)(iii), 4(b); Rules, para. 3(b)(ix)(3)).

Intentionally attempting to attract, for commercial gain, Internet users to its web site and generating confusion

The disputed domain name contains the Complainant’s well known trade mark(s). It is clear that the Respondent was aware of the Complainant’s trade mark at the time of registering the disputed domain name. By entirely incorporating the Complainant’s trade mark(s) in the disputed domain name, the Respondent deliberately chose a domain name which was likely to be confused with the Complainant’s trade mark(s), company name(s), brand name(s) and domain name(s). This name was explicitly chosen to generate Internet traffic to its web site, by creating a likelihood of confusion with the Complainant’s trade marks and as a consequence to receive commercial gains.

Suspicious contact details

It also support the Respondent’s bad faith that the Respondent is hiding its registered seat, factual address and other contact details. The Complainant has carried out a research with regard to the Respondent and has not found yet any data concerning the Respondent’s company form, its residence, contact details or other company data. The Complainant also sent a notice letter both to the Respondent and the Respondent’s administrative contact; however, the Complainant has not received any response from either of them yet (see Section IX.).

Infringement of good reputation, reference to competitors

In the Complainant’s view the disputed domain name has been registered to disrupt the Complainant’s online presence, tarnish its trademark(s) and infringe its reputation. The Complainant promotes and sales its service mostly via Internet, approximately 85 % of the ticket purchases is transacted through online bookings. As a consequence, the disputed domain name registered by the Respondent is especially harmful for the Complainant’s rights and interests. Furthermore, on the web site the Respondent invites potential customers to use other airlines i.e. the competitors of the Complainant, which constitutes the clear abuse of the Complainant’s trademark. Such behavior also qualifies as an anti-competitive conduct under competition law and as such, it violates the lawful interests of the Complainant. The good reputation of the Complainant’s trade mark is used by the Respondent for the purpose of attracting users to the web site and as such to generate commercial revenues.

“-sucks” suffix

The fact that the disputed domain name contains a well-known trade mark together with the word “-sucks” also support the argument of bad faith registration as the word “-sucks” only has a negative, pejorative meaning.

Overall, in the Complainant’s view, as the Respondent was evidently aware of the Complainant and its trade mark(s) when it registered the disputed domain name, it intended to generate traffic on its web site and to publish defamatory information on it. Consequently, and by also taking into consideration the above arguments, the disputed domain name is clearly being used in bad faith.

VI. Remedies Requested
(Rules, para. 3(b)(x))

12. In accordance with Paragraph 4(i) of the Policy, for the reasons described in Section V above, the Complainant requests the Administrative Panel appointed in this administrative proceeding issue a decision that www.wizzairsucks.com be transferred to the Complainant.

VII. Administrative Panel

(Rules, para. 3(b)(iv))

13. The Complainant elects to have the dispute decided by a single-member Administrative Panel.

VIII. Mutual Jurisdiction
(Rules, para. 3(b)(xiii))

14. In accordance with Paragraph 3(b)(xiii) of the Rules, the Complainant will submit, with respect to any challenges that may be made by the Respondent to a decision by the Administrative Panel to transfer or cancel the domain name that is the subject of this Complaint, to the jurisdiction of the courts at the location of the principal office of the concerned registrar.

IX. Other Legal Proceedings

(Rules, para. 3(b)(xi))

15. The Complainant sent a notice letter to (i) the Respondent, (ii) the Respondent’s administrative contact, and (iii) the registrar on 22 June 2009 with regard to the unlawful registration of the disputed domain name. However, only the registrar responded, while the Complainant has not received any response from the Respondent and / or the Respondent’s administrative contact yet.

X. Communications
(Rules, paras. 2(b), 3(b)(xii); Supplemental Rules, paras. 3, 4)

16. A copy of this Complaint, together with the cover sheet as prescribed by the Supplemental Rules, has been sent or transmitted to the Respondent on 17 August 2009 by postal mail by postage pre-paid and return-receipt.

17. A copy of this Complaint has been sent or transmitted to the concerned registrar on 17 August 2009 by postal mail by postage pre-paid and return-receipt.

18. This Complaint is submitted to the Center in electronic form (except to the extent not available for annexes), and in four (4) sets together with the original.

XI. Payment

(Rules, para. 19; Supplemental Rules, Annex D)

19. As required by the Rules and Supplemental Rules, payment in the amount of USD 1,500 has been made by bank transfer. Copy of the bank transfer certificate is provided as Annex 7 to this Complaint.

XII. Certification
(Rules, para. 3(b)(xiv))

20. The Complainant agrees that its claims and remedies concerning the registration of the domain name, the dispute, or the dispute’s resolution shall be solely against the domain name holder and waives all such claims and remedies against (a) the WIPO Arbitration and Mediation Center and Panelists, except in the case of deliberate wrongdoing, (b) the concerned registrar, (c) the registry administrator, (d) the Internet Corporation for Assigned Names and Numbers, as well as their directors, officers, employees, and agents.

21. The Complainant certifies that the information contained in this Complaint is to the best of the Complainant’s knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under the Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.

Respectfully submitted,

___________________

Dr. Dóra Petrányi

for and on behalf of

WIZZ Air Hungary Airlines Limited Liability Company

Date: Budapest, ___ August 2009